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03.05.12BLS-ACLU and OUTLaws Present Panel Discussion on Windsor v. United States and Its Impact on the Defense of Marriage Act

The Brooklyn Law School student chapter of the ACLU and OUTLaws cohosted a panel discussing Windsor v. United States and other challenges against the constitutionality of the Defense of Marriage Act (DOMA). The featured speakers were Professors Bill Araiza and Nelson Tebbe, both experts in constitutional law.

The panel began with a clip from the 2009 documentary, Edie & Thea: A Very Long Engagement, about a same-sex couple, Edie Windsor and Thea Spyer, who were together for over 44 years and married in Canada in 2007. At the time, New York had not yet legalized same-sex marriage, but was recognizing marriages performed in other states or countries. However, because the couple’s marriage was not legally recognized by the federal government, when Spyer died in 2009, Windsor was denied spousal benefits and taxed an extra $363,000 on her inheritance of her partner’s estate.

To open the conversation, Tebbe presented the framework for the suit that the ACLU filed on behalf Windsor and later in the program, Professor Susan Herman and ACLU President, provided insight on the ACLU’s decision to file the suit in the Southern District of New York. The plaintiff alleges that DOMA violates the Equal Protection Clause of the Constitution by only recognizing existing marriages of heterosexual couples, even if a state also recognizes those of homosexual couples. “The main issue here is about the Equal Protection Clause,” said Tebbe. He explained that the case may well end up in the Supreme Court, which then must determine whether sexual orientation—like race, gender, and national origin—is a category that is a suspect classification that will be subjected to strict scrutiny by the Court.

Araiza explored potential ways the Supreme Court may handle the case. While he agreed that the examination of the Equal Protection Clause will be a primary focus, he also noted that the Court might consider whether DOMA violated the 10th Amendment as well. In this situation, although New York State had the right to legally recognize Windsor and Spyer’s marriage, DOMA invalidated it in the eyes of the federally-run IRS. Similarly, in a Massachusetts case the federal government threatened to withhold funding for the state’s operation of veteran’s cemeteries, given the state’s policy of recognizing same-sex marriages, including burial rights in those cemeteries for the same-sex spouses of veterans. This creates a major contradiction, observed Araiza, explaining that “Congress can’t condition federal funding on a state acting unconstitutionally.”

Perhaps most importantly, the result of this suit will greatly influence the way the language of gender will be used in future Supreme Court cases. “Edie and the ACLU will force the courts to look at sex, sex roles, sexual orientation, and gender performance,” said Araiza.

The question and answer session sparked a lively discussion about the Obama Administration’s stance on DOMA. Soon after Windsor’s case was initially filed in the Southern District, Attorney General Eric Holder made an official statement that President Obama and the Department of Justice would no longer defend the 15-year-old law in court. Tebbe commented that this announcement was “confusing because the Executive Branch still requires the IRS to enforce DOMA out of court.” Araiza speculated that the decision implicated issues of lawyers’ professional responsibility, in which the Attorney General felt that DOMA did not protect the needs of the citizens of the United States, who he referred to as the Department of Justice’s “clients.”

Araiza compared Windsor v. United States to other civil rights milestones of the 20th century. Racial equality, for example, followed in the wake of post-World War II and anti-Nazi sentiment, as well as the success of Jackie Robinson in Major League Baseball and the Truman Administration’s increasing commitment to racial equality. The impact of “popular culture or social evolution” can be significant in affecting judicial reasoning, he reasoned.